Majeed C.P vs State Of Kerala

Mohammed Nias C.P.J

This is an application filed under Section 439 of the Code of Criminal Procedure, seeking regular bail.

The petitioner is the accused in Crime No.2 of 2022 of Excise Enforcement and Anti Narcotic Special Squad, Malappuram, for having committed offences punishable under Sections 8(c) and 20(b)II(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case is that, on 17.01.2022, at about 6.50 p.m., the detecting officer seized 3.050 kilograms of Hashish oil on a search conducted in the residence of the petitioner based on prior information and thereby committed the above offences.

The learned counsel appearing for the petitioner and the learned Public Prosecutor, who opposed the bail application, were heard.

The learned counsel for the petitioner submits that there is a violation of Section 42 of the NDPS Act, in as much as the search was conducted between sunrise and sunset in the premises without obtaining a search warrant, and the additional requirement of preparing the ground of belief for the same and sending a copy of the said ground of belief to his immediate superior was not complied and thus there is a total violation of the mandatory provision. Learned counsel relies on the following judgments in support of the proposition: Sarija Babu(A) Janarthani @ v. State [(2004) 12 SCC 266], Karnail Singh v. State of Haryana [(2009) 8 SCC 539], Sukhdev Singh v. State of Haryana [(2013) 2 SCC 212] and State of Rajasthan v. Jagraj Singh@ Hansa [(2016) 11 SCC 687]. He also argues that the petitioner was arrested on 17.1.2022 and therefore going by the principles in Mohamed Muslim v. State (NCT Delhi) [2023 Live Law (SC) 260] and Fasil v. State of Kerala [2023(3) KHC 212], he is entitled to be enlarged on bail. It is also pointed out that, in the Special Court at Manjeri, where the trial is to be conducted, no Public Prosecutor is appointed and, therefore the chance of a trial in the near future is very remote.

Learned Public Prosecutor while opposing the petition pointed out one antecedent against the petitioner at Vimadgula Police Station in Andhrapradesh as Crime No.241 of 2021 under the NDPS Act itself, and it was after the petitioner was released on bail in that case that the present crime was committed.

Having heard the rival contentions, It is to be noted that there are no details whatsoever about the details of the antecedent in the report filed. The report also does not say anything about compliance with Section 42 of the NDPS Act, though specifically alleged in the bail application. Infraction of Section 42, which is mandatory, is a matter to be considered even at the bail stage going by the judgment in Sarija Babu (A) Janarthani @ (supra) In the absence of anything to show the compliance of S.42, the contention on behalf of the petitioner has to be accepted, given the time of the alleged seizure. Thus,exfacie, the first limb of S.37 has to be held in favour of the petitioner. Regarding the second limb, as discussed above, no material details of the earlier crime are on record.

Under such circumstances, and also relying on the principles of law stated in Mohamed Muslim and Fasil (supra) and since the petitioner was arrested on 17.1.2022 and the possible delay in the trial of the case, I am inclined to allow the application diluting the rigour under Section 37 of the NDPS Act for the reasons mentioned above. The presence of the accused during the trial can be ensured by putting stringent conditions.

Accordingly, the petition stands allowed, and the petitioner can be enlarged on bail on the following conditions:

i. The petitioner shall be released on bail on executing separate bonds for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction; one of the sureties shall be a parent or close relative of the petitioner.

ii. He shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m. for three months and thereafter as and when directed to appear.

iii.He shall not intimidate or attempt to influence the witnesses, nor shall they tamper with the evidence or do anything that might adversely affect the trial;

iv. He shall not commit any offence while on bail;

v. He shall not leave the State of Kerala without the permission of the Court having jurisdiction;

vi.He shall not leave India without the permission of the jurisdictional Court and, if he has a passport, shall deposit the same before the Trial Court within a week.

vii.He shall furnish his present address along with his mobile number to the Court concerned as well as to the investigating officer.

viii. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail and pass appropriate orders in accordance with law.